Central Administrative Tribunal - Mumbai
Dr. B.V. Prasad Reddy vs Union Of India (Uoi) And Ors. on 8 April, 2004
Equivalent citations: 2005(1)SLJ61(CAT)
ORDER Muzaffar Husain, Member (J)
1. Aggrieved by the action of the respondents in not promoting the applicant to the post of Joint Commissioner of Income-tax, the applicant has approached this Tribunal under Section 190 of the Administrative Tribunals Act, 1985. The applicant has sought the following reliefs :
(a) This Hon'ble Tribunal may graciously be pleased to call for the records of the case from the respondents and after examining the same quash and set aside the impugned order dated 20.10.2003.
(b) This Hon'ble Tribunal may further be pleased to hold and declare that any grading in the confidential reports of the applicant where steep downfall is seen and/or which is below the benchmark should be ignored.
(c) This Hon'ble Tribunal may further be pleased to direct the respondents to conduct a review DPC and promote the applicant to the post of Joint Commissioner of Income-tax from the date of promotion of his immediate junior with all consequential benefits.
(d) Cost of the application be provided for.
(e) Any other and further order as this Hon'ble Tribunal deems fit in the nature and circumstances of the case be passed.
2. The facts briefly enumerated in the O.A. are that the applicant appeared for the Civil Services Examination conducted by the UPSC in the years 1992-93 and after selection he joined the Indian Revenue Service in the year 1994. The applicant belongs to 1993 batch of Indian Revenue Service. The applicant prior to his joining the Indian Revenue Service appeared for Medical as well as Engineering entrance examinations simultaneously and cleared both. However, he choose MBBS course and graduated from Kurnool Medical College, Andhra Pradesh. Despite being qualified doctor the applicant appeared for Civil Services Examinational and on the basis of the merit secured in the examination, the applicant had the choice of opting for the Indian Police Service. The applicant opted for Indian Revenue Service. He has also stated that right from the date of his joining he has been maintaining the minimum standard expected of a Group 'A' officer. There has not been any charge sheet or even a vigilance enquiry against the applicant throughout his service career. The performance of the applicant as Deputy Commissioner of Income-tax has been excellent during these years. The applicant has been appreciated for his outstanding performance by two appreciation letters by the Additional Director of Income-Tax (Investigation) for two actions conducted by the applicant in the year 2000-2001 in which the assessee admitted undisclosed income to the tune of Rs. 13 crores and 11 crores. The next promotion available to the applicant is to the post of Joint Commissioner of Income-tax which is Junior Administrative Grade. The applicant came within the zone of consideration for promotion to the post of Joint Commissioner of Income-tax in the year 2003-04. The Departmental Promotion Committee met on 25.9.2003. On the basis of the recommendations of the DPC, respondent No. 1 issued promotion order dated 20.10.2003 promoting 90 officers to the post of Joint Commissioner of Income-tax. The name of the applicant did not find place in the said order. By the same order dated 20.10.2003 the respondents have promoted 66 officers junior to the applicant. Respondent No. 4 who is immediately junior to the applicant it promoted vide order dated 20.10.2003. The applicant is supereseded in the matter of promotion to the post of Joint Commissioner of Income-tax. The applicant thereafter submitted a representation dated 27.10.2003 to respondent No. 2 but no reply has been received so far.
3. The respondents have opposed the O.A. and they have filed written statement wherein the respondents have taken preliminary objection to the maintainability of the O.A. on the ground that the applicant has not exhausted departmental remedies. In that he has submitted representation on 27.10.2003 against his supersession and non-promotion. Without waiting for disposal of the representation, the applicant has approached this Tribunal on 3.11.2003. The respondents pray that O.A. be rejected on preliminary grounds of non-exhausting of the departmental remedies. The respondents have also contended that there is nothing illegal in not promoting the applicant to the post of Joint Commissioner of Income-tax when his juniors have been promoted to the said grade. The respondents further stated that DPC was conducted as per rules and was presided over by a Member of UPSC as its Chairman and the said Selection Committee after scrutinising the ACRs for the period of previous five years prepared panel of the officers and officers who were considered fit by the said Committee. The DPC on the basis of the scrutiny of ACRs of the applicant assessed him as unfit for promotion. They have also stated that the applicant has not brought out any pleading relating grudge or bias by any member of the DPC towards the applicant. They have further stated that the Tribunal exercises the power of judicial review and does not act as a Court of Appeal. Therefore the proceedings of the DPC cannot be interfered with. The respondents have also raised the plea of non-joinder of parties and objected for making respondent No. 4 as a party in representative capacity and stated that the provisions of Order 8 Rule 1 of Code of Civil Procedure for adding and joining of parties in representative capacity have not been complied with. The respondents have therefore prayed that the O.A. be dismissed on grounds of non-joinder of parties. The respondents have further stated that as per the Indian Revenue Service Rules, 1988 officer in senior scale with not less than five years' regular service in that grade is eligible for consideration for promotion to the grade of Joint Commissioner of Income-tax. As such Deputy Commissioner of Income-tax who had completed five years regular service in senior scale as on 1.1.2003 were eligible for consideration for promotion to the grade of Joint Commissioner of Income-tax against the vacancies pertaining to the year 2003-04. The respondents contended that the applicant's case was also considered by the DPC but he was not recommended for promotion as he could not meet the benchmark 'Very Good' for the last five years for 199798 to 2001-02. They have further contended that as per DOPT's guidelines only adverse remarks have to be communicated to the concerned officer and there is no provision for communicating the remarks of the Reporting or Reviewing Officer if these remarks are other than adverse.
4. We have heard the learned Counsel for the parties and perused the material placed on record. We have also gone through the ACRs of the applicant and the DPC proceedings.
5. The learned Counsel for the respondents has raised his preliminary objection that the O.A. is premature as applicant has not exhausted departmental remedy provided under Rule 23 of the CCS (CCA) Rules, 1965. The learned Counsel for the applicant has replied that though the applicant has made a representation on 27.10.2003 and filed this O.A. on 3.11.2003. The question of maintainability on the ground of non-exhausting of the departmental remedies and thereby violating Government of India, Ministry of Defence O.M. No. PC-3182 MFO 2O51/O3/ART-3/D (Appts) dated 7.6.1967 read with Rule 23(4) of the CCS (CCA) Rules, 1965 as contended by the learned Counsel for the respondents does not arise as on the one hand the said notification is only an enabling provision and on the other hand the question of exhausting of departmental remedy can only be raised as bar for admission of the original application.
6. The learned Counsel for the applicant has also referred to Section 20 (1) of the Administrative Tribunals Act, 1985 which reads as under:-
"20. Applications not to be admitted unless other remedies exhausted--(1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances."
The learned Counsel for the applicant also contended that since the Tribunal has already admitted the application, the question raising the preliminary objection at this stage does not arise. He has also contended that Section 20 of the Administrative Tribunals Act, 1985 ordinarily prohibits admission of the application prior to the exhausting of the departmental remedies. The prohibition in the Act is not mandatory but only prohibitory with discretionary powers of the Tribunal to overlook the non-exhausting of departmental remedies in specific cases. He has further contended that since the Tribunal has unconditionally admitted the O.A. on 7.11.2003, by using its discretionary powers under Section 20(1) of the Administrative Tribunals Act, 1985. The same point cannot be agitated again during the course of final hearing.
7. The learned Counsel for the respondents has raised second preliminary objection that the applicant has prayed for quashing and setting aside order dated 20.10.2003 (AnnexureA-1). The applicant has added only Smt. Bhavana Chodha and not impleaded other officers likely to be adversely affected whereas 90 officers have been promoted by the said order. Therefore the application suffers from legal infirmity of non-joinder of necessary parties.
8. Learned Counsel for the applicant on the other hand has contended that there is no comparative assessment between the eligible candidates and that all the candidates within the zone of consideration who meet the bench mark for promotion are selected, of course subject to availability of vacancies.
9. Now we examine the preliminary objections raised by learned Counsel for the respondents. So far as the objection of non-exhausting of departmental remedies is concerned, we agree with the submission of the learned Counsel for the applicant that since the O.A. is already admitted, the Tribunal is deemed to have exercised its discretion in admitting the application without exhausting the departmental remedy under Section 20 (1) of the Administrative Tribunals Act, 1985. It is also relevant to note that the respondents have expressed their opinion regarding the case of the applicant on merit in their written statement, therefore, no useful purpose will be served by remitting the matter to the respondents. We have to see that substantial justice is done in the matter and case of the applicant is not thrown out merely on technical grounds Dismissing the application on technical grounds would not in any way advance the cause of substantial justice rather it would result in failure of justice. We, therefore, hold that preliminary objection raised by learned Counsel for respondents regarding non-exhausting the departmental remedies by applicant is devoid of merit.
10. The second preliminary objection raised by the learned Counsel for the respondent is regarding non-joinder of parties likely to be adversely affected in the event of granting relief to the applicant. So far as this objection is concerned the applicant has impleaded Smt. Bhavana Chodha as respondent No. 4 and contended that Smt. Chodha is impleaded in representative capacity. We are impressed by the argument submitted by the learned Counsel for the applicant that selection in question is not based on comparative assessment between the eligible candidates but only on meeting the benchmark and that all persons within the zone of consideration who meet the benchmark are being promoted subject to availability of the vacancies. In respect of respondents' opposition to prayer 8 (a) is concerned during the course of arguments the learned Counsel for the applicant has waived relief 8 (a) and pressed for relief 8 (b) and (c) only. Therefore, the non-joinder of persons promoted by the order dated 20.10.2003 has no adverse effect on the maintainability of the present original application.
11. The learned Counsel for the applicant while submitting his argument on merits has contended that the applicant has been overlooked for promotion on the solitary ground of not having met bench mark of 'Very Good; in his ACR for the year 1997-98 to 2001-2002. He has further contended that Hon'ble Supreme Court, Delhi High Court, Bombay High Court and different Benches of the Tribunal including the Full Bench have clearly held that grading below the bench mark as also grading which show fall in the standard are required to be communicated. The learned Counsel submitted that it has been held by Courts/ Tribunals that if such gradings are not communicated, the same should be ignored.
12. Learned Counsel has relied on the following decisions-
1. U.P. Jal Nigam v. P.C. Jain, 1996(33) ATC 217.
2. Dr. Binoy Gupta v. Union of India, 2002(3) ATJ 7.
3. Udai Krishna v. UOI, (1996) 33 ATC 802
4. UOI v. SM Verma, SLP (C) No. 2713/02, dated 28.1.2002 and 5.4.2002.
5. UOI v. B.L. Shrivastava, C.W. No. 715/01, dated. 2.2.01 (Delhi High Court).
6. Havildar S. Ram v. Chief of Army Staff, CW 4667/96, decided on 19.7.1999 (Delhi High Court) 84 (2000) DLT 687
7. Dr. J.P. Shrivastava v. UOI, 2003(2) ATJ 392.
8. V.S. Arora v. UOI and Ors., 2002(2) ATJ 432.
9. R.N. Pandey v. UOI and Ors., 2003(3) ATJ 648.
10. Judgment of Mumbai Bench dated 20.11.2003 in O.A. 215/02 (Nand lal Parihar v. UOI and Ors.)
13. The learned Counsel for the respondents on the other hand has argued that there is no provision to communicate to the officer in case the grading is recorded below the benchmark and, therefore, the applicant has not been informed of the grading below the benchmark of 'Very Good'.
14. The learned Counsel for the applicant has placed reliance on the decision in the case of Udai Krishna v. Union of India, (supra). In Paras 7,8, and 9, the Allahabad Bench of the C.A.T. has observed as under:
"7. It was also contended that the grading of the applicant as 'Good' and 'Average' in the context of the Rule that for promotion to the grade of Junior Administrative and above, the bench mark grade should be 'Very Good' assumes the character of adverse report and as such should have been communicated before the same was used by the DPC. It was submitted that uncommunicated adverse remark cannot be used for superseding the claim of an officer to higher grade. Generally, remarks 'Good' and 'Average' are not treated as adverse but, these remarks assume special significance when a Government Officer is excluded from the panel for promotion to a higher grade because the bench mark grade earned by him. is not 'Very Good'. There is no statutory definition of the word 'Adverse Entry'. We have, therefore referred to some of the standard dictionaries to ascertain the meaning of adverse entry. In Biswas on Encyclopaedic Law Dictionary and Mitra's Legal Dictionary 'Adverse' means opposed to one's interest, unfavourable, harmful, detrimental and prejudicial. According to Random House Dictionary 'adverse' means 'antagonistic in the purpose or effect, adverse criticism, opposing one's interest. In Corpus Juris Secondum Vol. XXVIII page 634 'Adverse' means 'unfavourable, detrimental. To sum up, any entry which adversely affects the interest of a person is adverse. The remarks 'Good' and Average' in the context of the recruitment (sic requirement) of bench marks grade 'Very Good' for promotion to Junior Administrative Grade and above will adversely affect the promotion of an Officer who has not earned the remark 'Very Good'. It is needless to say that the career prospects of a Subordinate Officer largely depends upon the work and character assessment by the Reporting Officer/Reviewing Officer/ Accepting Authority. In this connection, we would like to refer to the following observations of Hon'ble Mr. Sabyasachi Mukherji, J. as he then was in R.S. Dass v. Union of India, AIR 1987 SC 593=1987 (2) SLJ 56(SC).
"It cannot be said now-a-days, if one is aware of the facts and currents of life, that simply because categorisation and judgment of the service record of Officers are in the hands of Senior Officer it is a sufficient safeguard. There has been considerable erosion in the intrinsic sense of fairness and justice in the Senior Officers by all concerned. From the instances of conduct of many, some of Senior Officers and men in high position, it cannot be said that such erosion is not only unjustified".
8. Similarly, the Hon'ble Supreme Court, in S. Ramchandra Raju v. State of Orissa, 1995 SCC (L&S) 74, has made the following observations:
"This case would establish as a stark reality that writing confidential reports bears onerous responsibility on the Reporting Officer to eschew his subjectivity and personal prejudices or proclivity or predilections and to make objective assessment. It is needless to empahsise that the career prospects of a Subordinate Officer/employee largely depends upon the work and character assessment by the Reporting Officer. The latter should adopt fair, objective, dispassionate and constructive commends/comments in estimating or assessing the character, ability, integrity and responsibility displayed by the Officer/employee concerned during the relevant period for the above objectives if not strictly adhered to in making an honest assessment, the prospect and career of the Subordinate Officer being put to great jeopardy."
9. In view of the falling moral and ethical standard and having regard to the observations made by the Hon'ble Supreme Court in the judgment referred to above the possibility of an unscrupulous officer, who does not possess enough courage to invite open confrontation with the subordinate but, at the same time intends to settle personal score by spoiling his career prospects, by giving remarks which may not be communicable but, at the same time mar prospects of his promotion to higher grade, cannot be ruled out. The Officer becomes a victim of the bias and prejudice of such an unscrupulous Reporting Officer and will come to know of the mischief only after five years when the damage is already done. In this view of the matter, we are inclined to agree that a 'Good' or 'Average' grading in the ACR, though not per sead verse would assume the character of adverse remarks in the context of the requirement of 'Very Good' bench mark to qualify for empanelment for promotion to Junior Administrative Grade and above."
15. The learned Counsel for the applicant has also placed reliance on the decision of the Delhi High Court dated 2.2.2001 in Civil Writ Petition No. 715 of 2001 Union of India v. B.C. Shrivastava, (supra) wherein it has been observed as under:-
"......The law is well settled now that any downgrading which will affect the promotional prospects of the employee has to be communicated to him so that he can make an effective representation and take recourse to an appropriate remedy. We, therefore, do not find any merit in this petition. The same is accordingly dismissed in limine."
16. The learned Counsel also invited our attention to the Apex Court's decision in the case of U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors., (supra) wherein in Para 3 the Hon'ble Supreme Court has observed as under:-
"3. We need to explain these observations of the High Court. The Nigam has rules, whereunder an adverse entry is required to be communicated to the employee concerned, but not downgrading of an entry. It has been urged on behalf of the Nigam that when the nature of the entry does not reflect any adverseness that is not required to be communicated. As we view it the extreme illustration given by the High Court may reflect an adverse element compulsorily communicable, but if the graded entry is of going a step down, like falling from 'very good' to 'good' that may not ordinarily bez an adverse entry since both are a positive grading. All that is required by the authority recording confidentials in the situation is to record reasons for such downgrading on the personal file of the officer concerned, and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one-time achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, not be reflected in such variations, as otherwise they shall be communicated as such. It may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case we have seen the service record of the first respondent. No reason for the change is mentioned. The downgrading is reflected by comparsion. This cannot sustain. Having explained in this manner the case of the first respondent and the system that should prevail in the Jal Nigam, we do not find any difficulty in accepting the ultimate result arrived at by the High Court."
17. The learned Counsel has also drawn our attention to the decision of a Division Bench of Hon'ble Bombay High Court in the case of Dr. Binoy Gupta v. Union of India and Ors., (supra) wherein it has been held as follows :
"The learned Counsel for the petitioner submitted and in our opinion rightly that no useful purpose will be served by communicating the ACRs from the year 199495 in the year 2002, since the petitioner may not be able to effectively represent against the same. Further more the Reporting Officer and Reviewing Officer of the year 1994-95 are not available to assess the performance of the petitioner and the representation made by the petitioner against those ACR would be considered and replied by officer who had no opportunity to assess the performance of the petitioner during that particular year. The learned Counsel pointed out that the Tribunal in similar cases directed the DPC to consider candidate's case by excluding from considering the uncommunicated ACRs downgrading the officer."
18. Relying on the decision of the Bombay High Court, learned Counsel for the applicant has contended that the persons who reviewed the gradings of the applicant below benchmark are not in service, the said contentions have not been controverted by the respondents in their written statement. Thus we see that there is no occasion to review the grading of the applicant below the benchmark.
19. Now we shall proceed to deal with the merit of the case for which we have perused the ACR grading of the applicant which is as follows :
Period of ACR Grading Given
Reporting Reviewing
(Year) Officer Officer
1997-98 Very Good Very Good
1998-99 Very Good Very Good
1999-00 Good Good
2000-01 Excellent Excellent
2001-02 Nil Good
The perusal of the above grading in ACR indicates that the applicant has been graded below the benchmark for the years 1999-2000 and 2001-2002. It is also seen that there is a perceptible perilous fall in the grading for the year 1999-2000 as against the grading for the year 1998-1999. So far as the grading for the year 2001-2002 is concerned there is steep fall in the grading as compared to the grading of 2000-2001. We also note that grading of the ACR for the earlier years i.e. 1995-96 and 1996-97 are 'Very Good', and therefore upto the benchmark which shows that the officer has more or less consistently shown performance upto the benchmark. In the years 1999-2000 and 2001-2002, downgrading is reflected by comparison but no reasons for change in downgrading is mentioned.
20. Following the decision in the case of U.P. Jal Nigam (supra), their Lordships of the Hon'ble Bombay High Court in B.V. Binoy Gupta's case (supra) has further held :
".....In the light of the decision of the Supreme Court we find that non-selection of the petition for promotion to the post of Chief Commissioner on the basis of ACR where communication of down grading has not been made vitiates the proceedings. Therefore we direct the respondents to convene a review DPC and reconsider the case of the petitioner ignoring the ACRs of the Reviewing Officer for 1995-96 and also ACRs of 1996-97 and 1998-99 and if he is found suitable give him promotion from the date from which other officers who were promoted on the recommendations of the DPC."
21. We are in respectful agreement with the decision of the Hon'ble Bombay High Court which has already been unsuccessfully tested before the Hon'ble Apex Court in SLP. The applicant of (sic) of the Bombay High Court has been fully implemented coincidentally by the same Income-tax department. Thus the decision of the Bombay High Court was approved by the Hon'ble Apex Court. Following the decision we hold that in the instant case of the applicant there was a downgrading of ACRs for the years 1999-2000 and 2001-2002 and the downgrading and steep fall has not been communicated to the applicant and the same deserved to be ignored while assessment was made by the DPC. This vitiates the DPC proceedings so far as the applicant is concerned.
22. We therefore direct the respondents to convene review DPC to consider the case of the applicant for promotion to the post of Joint Commissioner by ignoring the ACRs for the years 1999-2000 and 2001-02 and if found suitable grant him promotion from the date from which his immediate junior has been promoted. This exercise shall be completed within a period of two months from the date of receipt of copy of this order. The O.A. is partly allowed in the aforesaid terms. No orders as to costs.